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LEGAL ADVICE FOR ACTIVISTS

16. Home Demos - Section 42, Criminal Justice and Police Act 2001

Section 42 of the Criminal Justice and Police Act 2001 enables the police to impose conditions on demonstrations taking place outside someone’s home. Much was made of this new law at the time, as it was supposed to be one of the government’s “package of measures” designed to stop animal rights extremism. But it has quickly become apparent that this law has had very little impact on home demos, and after intensive lobbying by the pharmaceutical industry and the police, the government have announced plans to make these kinds of demos illegal.

Section 42 confers power on a police officer to impose directions verbally on persons demonstrating in the 'vicinity' of someone's dwelling, if he reasonably believes that they are there to protest against the actions of the resident of the dwelling or anyone else, and that their presence amounts to or is likely to cause harassment, alarm or distress to the resident. This includes the power to direct you to leave the vicinity immediately. An officer can ask you to leave even if your behaviour is entirely peaceful, so long as you're in the vicinity of a dwelling. He can also impose conditions on the demonstration stating where it may take place and how many people may take part.

Frequently Asked Questions on Section 42

Can the police still use Section 42 if the dwelling is also used as a business?
Yes they can. So for example if you are protesting outside an animal breeding facility and you are also in the vicinity of someone’s dwelling then the police could issue you with a Section 42 direction.

Are home demos now illegal under Section 42?
No they are not. The Section 42 offence is committed when you fail to comply with the police officer's direction. This could be a direction to leave the area or to demonstrate in a certain location. Activists frequently avoid Section 42 directions, by doing a series of home demos and leaving before the police arrive.

What is the “vicinity”?
The law is drafted so that you may be required to leave the vicinity, even if the “victim” is not at home, if the police reasonably believe you are causing harassment etc to his neighbours. The section does not define 'vicinity', so this will be for the constable and ultimately the courts to determine. You are usually required at least to leave the street on which the person lives. We believe that once you’re at least a mile away, then you cannot be said to be in the vicinity. Police at the site of one animal rights protest however are currently telling protestors that they have to go several miles in each direction. This is almost certainly illegal.

Do the “residents” have to be at home during the demonstration?
Section 42 states that the police must reasonably suspect that your presence amounts to or is likely to cause harassment or distress to the “resident”, in order to issue you with a direction. The “resident” is defined as anyone who uses the premises as their dwelling. We believe that the police must therefore take some steps to establish whether someone is actually at home before they can lawfully issue a direction. If they fail to do so, this could make a Section 42 direction to leave unlawful.

Human Rights
When exercising their discretion in imposing directions on a home demo, the police must not act in a way, which is incompatible with your European convention rights. Any restrictions the police impose on your freedom of expression and assembly must be proportionate and no more than necessary to protect the rights of others. This means in practice, that they cannot impose conditions which are not necessary to prevent harassment of the resident – for example, a condition to leave the entire county.

What are the powers of arrest and punishment?
An offence is committed by anyone who knowingly fails to comply with a Section 42 direction. Section 42 is not an “arrestable offence” and you can only be arrested by a police officer in uniform who reasonably suspects you of committing an offence. This means you cannot be arrested without warrant for it afterwards and in the event that you are arrested your house cannot be searched. The offence is punishable summarily by up to 3 months imprisonment or a fine.

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